Satanic Temple Will Challenge Texas' New Fetal Remains Rules

As reported yesterday by Jezebel, the Satanic Temple says that it plans to challenge Texas' new rules requiring burial or cremation of fetal remains as a violation of its members' rights under the Texas Religious Freedom Restoration Act.  A spokesman for Satanic Temple said:

Texas health officials are baldly imposing the view that the fetal tissue is elevated to personhood—a religious opinion that conflicts with our own. If Texas is going to treat the disposal of fetal tissue differently from the disposal of any other biological material, in contradiction to our own religious beliefs, they need to present a compelling state interest for doing so. Of course, there is no such state interest, and it’s perfectly clear the demand for fetal tissue burial is a punitive measure imposed by sadistic theocrats. It’s clear these officials deem harassment an acceptable form of pushing their misguided religious agendas.

The organization plans to file for an injunction as soon as the state attempts to apply the new rules to one of its members. [Thanks to Scott Mange for the lead.]

Supreme Court Grants Cert. In 3 ERISA Church Plan Cases

Today the U.S. Supreme Court granted review in three cases all posing the question of how to interpret the "church plan" exemption in the Employee Retirement Income and Security Act (ERISA). (Order List, Dec. 2, 2016). The cases are Advocate Health Care v. Stapleton, (Docket No. 16-74) (prior posting on 7th Circuit's decision), St. Peter's Health Care v. Kaplan, (Docket No. 16-86) (prior posting on 3rd Circuit's decision), and Dignity Health v. Rollins, (Docket No. 16-258) (prior posting on 9th Circuit's decision).

At issue are the following provisions in 29 USC 1003(b)(2):

(33)(A) The term “church plan” means a plan established and maintained . . . by a church or by a convention or association of churches....

(C) For purposes of this paragraph— (i) A plan established and maintained for its employees (or their beneficiaries) by a church or by a convention or association of churches includes a plan maintained by an organization ... [which] is controlled by or associated with a church or a convention or association of churches.

The religiously affiliated health care systems in these cases, rather than the churches they are affiliated with, created the retirement plans for their employees.  In 1983 in a General Counsel Memorandum, the Internal Revenue Service took the position that it is sufficient if the retirement plan was is maintained by a religiously affiliated organization, even if it was initially created by that organization and not the "church" it was affiliated with.  In a series of cases filed around the country, plan beneficiaries have attacked that conclusion and in the cases in which the Court today granted certiorari the plan beneficiaries prevailed.  If the Supreme Court affirms these Circuit Court decisions, retirement plans of various religiously-affiliated organizations will be undefunded in total by billions of dollars.

SCOTUSblog has case pages for each of the cases (case page for Advocate Health Care case with links to case pages for other two cases).

European Court Finds Lack of Fair Hearing For Church Over Expropriation

In Lupeni Greek Catholic Parish v. Romania, (ECHR, Nov. 29, 2016), the Grand Chamber of the European Court of Human Rights held that a Greek Catholic church had been denied a fair hearing in Romania on its claim for compensation for the expropriation by Romania's former Communist government of the church's property followed by its transfer to the Greek Orthodox Church. The court said in part:

The protection of minorities is almost always unpopular and the protection of religious minorities is even more so. Europe has a long history of religious majorities disregarding the rights of religious minorities. This is an area where present-day democratic standards oblige a majority to show restraint, for the sake of respecting minorities. Unfortunately this case shows that States are often reluctant to undo the injustice committed to religious minorities when the interest of the religious majority is at stake.

Law & Religion UK has an extensive discussion of the case.

White House Ready For Holidays; National Christmas Tree Lit

NBC reports that President Obama, Michelle Obama and their daughter Sasha last night lit the National Christmas Tree on the Ellipse. The White House website now includes a 2016 Holidays at the White House page, carrying stories on decorations and activities at the White House for the holiday season.

UPDATE: Here is the full text of the President's remarks at the lighting of the National Christmas Tree.

Brazil's Supreme Federal Court Invalidates Sentences of Abortion Clinic Workers

On Tuesday, a 4-judge panel of the First Chamber of Brazil's Supreme Federal Court overturned the jail sentences of 5 people who were working at an underground abortion clinic near Rio de Janeiro.  Telesur reports:

Judge Luis Roberto Barroso argued in his decision that given that women carry the full burden of reproduction, “there will be full equality only if she is recognized as having the right to decide.”

He argued that women’s health and safety should be ensured without interference, saying, “Having a child determined by the Criminal Code constitutes a serious violation of the physical and psychological integrity of a woman.”

Barroso also noted that criminalization of abortion disproportionately affects poor and marginalized women who face even more restricted access to private services.

Here is the full text in Portuguese of Judge Barroso's opinion. RNS reports that the decision, which is seen as setting precedent "legalizing abortion during the first trimester has caused uproar among politicians with strong ties to Roman Catholic and evangelical faiths, who have gained ground in the current government."

"In God We Trust" On Currency Does Not Substantially Burden Atheists

In New Doe Child #1 v. Congress of the United States, (ND OH, Nov. 30, 2016), an Ohio federal district court rejected several challenges to the United States' use of the motto "In God We Trust" on currency. Various plaintiffs either do not believe in God, or find the use of God's name on currency to be sinful.  The court rejected plaintiffs' 1st Amendment and RFRA free exercise claims as well as their compelled speech and equal protection arguments. The court said in part:

Plaintiffs cannot demonstrate that the use of the motto on currency substantially burdens their religious exercise. Credit cards and checks allow Plaintiffs to conduct the bulk of their purchases with currency not inscribed with the motto. And for cash-only transactions, such as a garage sale or a coin-operated laundromat, the use of the motto on currency does not substantially burden Plaintiffs’ free exercise.... Furthermore, Plaintiffs’ other concerns, that they may be subject to peer pressure or ridicule, or that their children may question their beliefs, are unlike the choice between a “basic benefit and a core belief” described in the Supreme Court’s case law....

(See prior related posting.)

Liability of B&B Upheld For Refusing To Host Same-Sex Ceremony

A 3-member panel of the Illinois Human Rights Commission has adopted a hearing examiner's recommendations (see prior posting) and ruled against a bed-and-breakfast that refused to host a same-sex civil union ceremony.  In Wathen v. Walder Vocuflo, Inc., (IL HRC, Nov. 18, 2016), the commission accepted the recommended damages of $30,000 for emotional distress as well as $51,218 in attorneys' fees and costs. In a press release announcing the decision, the Illinois ACLU said in part:

The Commission’s decision once again sends a clear message that denying couples the use of a public wedding venue in Illinois because they are gay or lesbian is simply not permitted. Business owners cannot pick-and-choose to follow laws simply because they personally disagree with same-sex couples’ decision to marry.

According to the Chicago Tribune, attorneys for the bed-and-breakfast say they will seek review from the full Commission and, if necessary, by the Illinois Court of Appeals.

Australian Judge Says Muslim Plaintiff Cannot Testify Without Removing Veil

Australia's Daily Telegraph reported yesterday that a trial court judge in the Australian state of New South Wales has ruled that a Muslim woman who is plaintiff in a civil case against the state and federal governments may not take the stand in her own trial without removing her veil which conceals her face. Moutia Elzahed, who is one of two women married to a convicted Islamic extremist, is suing over alleged police brutality during a 2014 counter-terrorism raid of her home.  Elzhed says that for religious reasons she cannot show her face to any man outside her family.  She rejected alternatives of testifying in closed court or via a closed circuit television link since either would show her face to the male lawyers involved in the case.  Elzhed also refused to stand when Judge Audrey Balla entered the courtroom.

UPDATE: Here is the full text of the judge's decision.

Mexico Charges Priest With Electioneering Offense

In Mexico on Tuesday, prosecutors-- in a first of its kind case-- filed charges of "vote pressuring" against a Roman Catholic priest. The offense is punishable by a fine.  AP reports:

Prosecutors accuse the priest and two former mayoral candidates of participating in a Mass at a church in the town of Chiautla, in the state of Mexico. The priest allegedly blessed the candidates, and the Mass was allegedly touted as the opening of their campaigns.

Under Mexican law, clergy are not allowed to endorse political candidates. [Thanks to Scott Mange for the lead.]

European Commission Meets With Religious Leaders

According to a European Commission press release, yesterday the Commission sponsored the 12th annual high-level meeting with religious leaders from across Europe to discuss Migration, Integration and European Values. European Commission First Vice-President Frans Timmermans who hosted the meeting said:

Religious leaders play a pivotal role to spur the integration and participation of all their members in Europe as full Europeans, no matter the place of their cradle, no matter their creed. Through these dialogues we identify those common fundamental values that bind us, instead of harping on the issues that divide us.

Article 17 of the Treaty of Lisbon calls for the European Union to maintain open, transparent and regular dialogue with churches and with philosophical and non-confessional organizations. The meeting included Catholic, Orthodox, Protestant, Mormon, Muslim, Jewish, and Hindu religious leaders. In June, the Commission held a similar conference with philosophical and non-confessional organizations. [Thanks to Law & Religion UK for the lead.]

British Plastic Banknotes Raise Problems For Vegans

In Britain, vegans and vegetarians are protesting the country's new currency.  According to The Independent yesterday, the new £5 notes printed on polymer rather than paper contain animal fat. A spokesperson for the Bank of England said of the new banknotes:

We can confirm that the polymer pellet from which the base substrate is made contains a trace of a substance known as tallow. Tallow is derived from animal fats (suet) and is a substance that is also widely used in the manufacture of candles and soap.

Further details about production were not released, but depending on the kind of animal fat used the bills could also create problems for certain religious groups.

Muslim Lawyers' Groups Strategize Over Trump Administration

National Law Journal reported Monday that Muslim lawyers' groups around the country are planning ahead for the issues that may arise in the Trump administration, saying in part:

"People right now are struggling to figure out where we're going to focus our efforts," said Fatema Merchant, a member of the Capital Area Muslim Bar Association (CAMBA) board....

Civil rights, hate crimes, First Amend­ment protection, immigration law and election law are some of the concerns of the 100-member organization.... The challenge is to determine how to spend the group's energy. "We can't do everything," she said.

CAMBA is among Muslim attorney groups nationwide grappling with changes expected in the professional and private lives of Muslim lawyers following Trump's election. Of particular worry is his proposal to create a Muslim registry.

Final Texas Rules On Disposal of Fetal Remains Are Adopted

Texas Tribune reports that yesterday the Texas Health and Human Services Commission filed final rules on disposition of fetal tissue with the Secretary of State's office.  Under the rules, which take effect December 19, hospitals, abortion clinics and other health care facilities may not dispose of fetal remains in sanitary landfills and instead are required to cremate or bury all remains regardless of the period of gestation. Amendments to the proposed rules that appear in the final rules clarify that the requirements do not apply to miscarriages or abortions that occur at home. Also, to protect privacy, birth or death certificates will not be required before disposal. Health care facilities, not patients, will be responsible for the costs of burial or cremation. [Thanks to Scott Mange for the lead.]

Pakistan Sentences 5 To Death In Killing of Christian Couple Over Supposed Qur'an Burning

Last Wednesday a judge on Pakistan's Anti-Terrorism Court imposed the death sentence on five Muslims for torturing and killing a Christian couple who, it was alleged, had burned pages from the Qur'an in the brick kiln where they worked. Eight others were sentenced to two years in prison. Morning Star News, reporting on the sentences, recounts:

Hundreds of villagers in Kot Radha Kishan, incited by Muslim leaders calling for violence via mosque loudspeakers, were involved in the Nov. 4, 2014 assault in which 26-year-old Shahzad Masih and his five-months pregnant wife, Shama, 24, were thrown into a burning brick kiln....

Masih and his wife worked as bonded laborers at the brick kiln when the throng descended on them after area Muslims accused them of committing blasphemy by burning Quranic pages....

On Nov. 2, 2014 Shama Masih was cleaning her quarters ... when she found amulets of her late father-in-law, who had used them in the practice of black magic. The amulets may have contained koranic verses, and a Muslim co-worker, Muhammad Irfan, noticed half-burnt papers and accused the family of desecrating the Koran, relatives said.

Supreme Court Denies Cert. In Ecclesiastical Abstention and RFRA Cases

The U.S. Supreme Court today denied review in Pfeil v. St. Matthews Evangelical Lutheran Church, (Docket No. 16-210, cert. denied 11/28/2016) (Order List).  In the case the Minnesota Supreme Court held that the 1st Amendment's ecclesiastical abstention doctrine prohibits holding a church and its pastors liable in a defamation action for statements made during church disciplinary proceedings seeking to excommunicate plaintiffs. (See prior posting.)

Today the Supreme Court also denied certiorari in Oklevueha Native American Church of Hawaii v. Lynch, (Docket No. 16-418, cert. denied 11/28/2016) (Order List). In the case the 9th Circuit, rejecting a RFRA defense, held that a church and its founder were properly denied an exemption from federal laws that prohibit the possession and distribution of cannabis. (See prior posting.)

Recent Articles of Interest

From SSRN:

• Carissima Mathen & Michael Plaxton, Legal Education, TWU, and the Looking Glass, ((2016) 75 Supreme Court Law Review (2d) 223).
• Asli U. Bali & Hanna Lerner, Constitution Writing, Religion and Democracy: Introduction, (Constitution Writing, Religion and Democracy, Cambridge University Press, 2017, Forthcoming).
• Darrell A. H. Miller, Institutions and the Second Amendment, (66 Duke Law Journal 69 (2016)).
• Alexander Tsesis, Campus Speech and Harassment, (Minnesota Law Review, Vol. 101, 2017).
• Brian Christopher Jones & Austin Sarat, Justices As 'Sacred Symbols': Antonin Scalia and the Cultural Life of the Law, (British Journal of American Legal Studies (2017) Forthcoming.).
• David L. Sloss, Incorporation, Federalism, and International Human Rights, (Human Rights and Legal Judgments: The American Story (Austin Sarat ed., Cambridge Univ. Press 2017).
• Melissa Murray, Obergefell v. Hodges and Nonmarriage Inequality, (104 Calif. L. Rev. 1207 (2016)).
• Sandra Alcaide & Lynne Marie Kohm, Obergefell: A Game-Changer for Women, (14 Ave Marie L. Rev. 101 (2016)).

From SmartCILP and elsewhere:

• Luz E. Nagle & Bolaji Owasanoye, Fearing the Dark: The Use of Witchcraft to Control Human Trafficking Victims and Sustain Vulnerability, 45 Southwestern Law Reveiw 561-593 (2016).
• Stephanie N. Phillips, A Text-Based Interpretation of Title VII's Religious-Employer Exemption, 20 Texas Review of Law & Politics 295-340 (2016).
• Symposium Issue: Law, Stewardship, and the Dominion Mandate: Environmental Policy from a Christian Legal Perspective. Foreword by B. Keith Faulkner; introduction by Ian S. Lamont; articles by John Copeland Nagle, Lucia A. Silecchia, Tory L. Lucas and Edna Udobong. 10 Liberty University Law Review 331-500 (2016).
• Symposium on Religion and Family Law. University of Illinois Law Review, Vol. 2016, No. 4.

Before DeVos, Trump Offered Secretary of Education Post To Jerry Falwell, Jr.

As previously reported, Donald Trump last week picked school-choice advocate Betsy DeVos as his nominee for Secretary of Education.  AP reported yesterday that Trump had first offered the position to Liberty University president Jerry Falwell Jr.:

Falwell tells The Associated Press that Trump offered him the job last week during a meeting in New York. He says Trump wanted a four- to six-year commitment, but that he couldn't leave Liberty for more than two years.

Falwell says he couldn't afford to work at a Cabinet-level job for longer than that and didn't want to move his family, especially his 16-year-old daughter.

Recent Prisoner Free Exercise Cases

In Porter v. Wegman, (9th Cir., Nov. 23, 2016), the 9th Circuit reversed a distrcit court's summary judgment for defendant and remanded for trial an inmate's complaint that he was wrongly switched from a kosher diet to a vegetarian diet and was denied dietary accommodations during multi-day Passover observances.

In Davilla v. Watts, 2016 U.S. Dist. LEXIS 160966 (SD GA, Nov. 21, 2016), a Georgia federal magistrate judge recommended denying a preliminary injunction to a Santeria practitioner who sought additional ability to practice his religion.

In Sanford v. Madison County, 2016 U.S. Dist. LEXIS 161906 (SD IL, Nov. 22, 2016). an Illinois federal district court adopted a magistrate's recommendation (2016 U.S. Dist. LEXIS 161904, Nov. 4, 2016) and allowed a Muslim inmate to file an amended complaint alleging that defendants imposed unconstitutional restrictions on his religious practices.

In White v. Wright, 2016 U.S. Dist. LEXIS 161870 (ED WI, Nov. 22, 2016), a Wisconsin federal district court allowed a Muslim inmate to move ahead with his complaint that jail authorities interfered with, and harassed him during, his prayers, and often denied him his vegan diet.

In Yah'Torah v. Hicks, 2016 U.S. Dist. LEXIS 162315 (D NJ, Nov. 22, 2016), a New Jersey federal magistrate judge permitted an inmate to reinstate the head of the Religious Issues Committee as a defendant in his suit complaining that he was denied access to fragrant oils for religious purposes.

In Hauseur v. Clark, 2016 U.S. Dist. LEXIS 162849 (ED CA, Nov. 22, 2016), a California federal magistrate judge recommended allowing amendments to assert claims under California's Civil Code 51.7 and the Bane Act by an inmate who complained about the standards for kosher meals he received and about the failure to provide Jewish religious services on many occasions. The court dismissed plaintiff's claim under the Unruh Civil Rights Act.

In Hedin v. Castillo, 2016 U.S. Dist. LEXIS 162528 (D OR, Nov. 23, 2016), an Oregon federal district court adopted a magistrate's findings (2016 U.S. Dist. LEXIS 163020, Sept. 27, 2016) and dismissed on various grounds claims by an inmate that changes had restricted his ability to practice his Asatru faith.

In Fletcher v. Kelly, 2016 U.S. Dist. LEXIS 162443 (ED AR, Nov. 23, 2016), an Arkansas federal district court adopted a magistrate's recommendations (2016 U.S. Dist. LEXIS 163028, Oct. 28, 2016) and dismissed (for failure to exhaust administrative remedies against him) one of the defendants in a suit by a Cherokee Nation inmate who is seeking use of a sweat lodge and a number of other ceremonial items.

Canadian Court Refuses Parent's Religious Accommodation Request

In E.T. v. Hamilton-Wentworth District School Board, (ON Super. Ct. Jus., Nov. 23, 2016), an Ontario (Canada) trial court rejected an attempt by the father of two elementary school students to require his children's school to notify him in advance of specific curriculum areas being taught to his children so he could withdraw them from classes, lessons or activities that conflict with his Greek Orthodox religious beliefs.  The father contended that he has an obligation to protect his children from "false teachings," including moral relativism and issues surrounding human sexuality. While the school had a religious accommodation guideline and the parent had shown a sincere religious belief as to matters of marriage and sexuality that are inconsistent with the school's curriculum, the court upheld the school's refusal to grant his requested accommodation, saying in part:

Accommodation by non-attendance, which is sought by the applicant, would allow him to isolate his children from aspects of the curriculum that in his religious belief would amount to "false teachings". However isolation is antithetical to the competing legislative mandate and Charter values favoring inclusivity, equality and multiculturalism.

LifeSite News reports on the decision. 

British Court Rejects Challenge To Jewish Cemetery's Refusal To Allow Exhumation

In Britain this week, a High Court judge has denied an application for leave to obtain judicial review of a decision by a Jewish cemetery that refused to allow a man's body to be exhumed for reburial in Israel.  According to the Jewish Chronicle, the case involves the late Joseph Charazi who was buried in a Jewish cemetery in Hertfordshire in 1993. Charazi was born in Israel and his wife Anne claims his dying wish was to be buried back there. However in 1993 his widow could not afford to send his body that distance. In 2011, his widow herself moved to Israel and now wants to carry out Charazi's wishes even though 4 of Charzi's children oppose the move.  Adath Yisroel Burial Society that administers the cemetery followed a ruling of the rabbinate that the body should not be exhumed.  The court held that a decision of a religious body in a matter of a religious nature is generally not amenable to judicial review.